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Medical consent not vitiated despite the patient being mistaken as to the identity of their surgeon

The NSW Supreme Court awarded $1,005,509 in damages plus costs to the plaintiff for complications suffered as a result of a negligently performed incisional hernia repair but rejected a claim in battery based on lack of consent to the operation being performed by a registrar.

In Issue

Whether the plaintiff had consented to the operation as she had mistaken who was preforming the surgery

The cause and origin of the infection, when it ought to have been evident, and what ought to have been done to treat it

The Background

The plaintiff attended Wagga Wagga Base Hospital on 7 June 2010 for incisional hernia repair which was performed by a surgical registrar under the supervision of a specialist surgeon. Further surgery was carried out on 15 June 2010 and 27 June 2010.

On 16 July 2010 the plaintiff was admitted to hospital in Canberra after developing a severe infection. The infection was caused by surgical mesh used during the initial procedure.

The plaintiff sued the defendant (which was vicariously liable for any tortious conduct of the doctors) for damages. The primary case in battery was brought on the basis that she did not consent to the registrar performing the surgery. She also claimed in negligence on the basis that the surgeon ought to have inserted negative pressure drains to reduce the infection risk and, alternatively, have diagnosed and treated the infection during the 2nd or 3rd procedures.

The Decision at Trial

The court found that the performance of the surgery, at least in part, by the registrar did not change the nature and character of the act so to vitiate consent. The court noted that the issue of the relative skill and experience of the particular surgeon fell within the law of negligence (failure to warn cases) and not battery.

Additionally, the plaintiff’s signed consent form advised broadly that the procedure might be carried out by another doctor. The court was satisfied that the plaintiff was aware of the form’s contents despite her evidence that she was not aware of this particular term.

In relation to the negligence claim, a conclave of 5 consultant surgeons gave evidence. The court accepted their agreement that infection was a foreseeable risk of the procedure and that the risk was enhanced in the plaintiff’s case given she was a smoker, obese, the incision site was susceptible (lower abdomen) and the procedure involved the use of a foreign body (mesh).

While competent medical practice did not require drains for every patient, each expert said they would have used drains in the plaintiff’s case.The court agreed, finding that the relevant standard of care required use of drains.The court also took into account that the drains were cheap and readily available.

The court found that on 3 July there were overt signs of infection.The surgeon fell short of the standard of care in failing to treat this infection by removing the mesh.

The plaintiff was awarded $1,005,509.00 in damages plus costs.

Implications for you

The decision highlights the importance of identifying and addressing risk factors particular to each patient and documenting the consent process.